Ford a. Sampson.

where the point I am now required to pass upon was taken for granted without any examination, either upon principle or authority. Having come to this conclusion, it becomes unneces sary to examine the other point discussed upon the motion. A nonsuit must be entered.

FORD a. SAMPSON.

Supreme Court, Second District; General Term, May, 1859. ACTION FOR LANDS.-PLEADING.

In an action to recover possession of real property, an answer denying that defendant is in possession, or that he unlawfully withholds possession, does not raise the question of adverse possession, or authorize a recovery on that ground.

If the defendant seeks to prevail on the ground of an adverse possession, or to defeat the plaintiff's title on the ground that the conveyance under which he claims was made pending an adverse possession, he should in his answer set up title in himself, or out of the plaintiff.

Motion to turn a verdict for defendant into a verdict for plaintiff.

This action was brought by the plaintiff, who owned and occupied a lot of ground in Brooklyn, to recover from the defendant, who owned and occupied the adjoining lot, a gore or strip which the plaintiff claimed to belong to him, but which, by reason of the division fence being deflected from the true boundary, as plaintiff alleged, was in possession of the defendant.

The complaint alleged seizin and right of possession in the plaintiff to the lot described, including the gore in question, and that the defendant, at the time of the commencement of the action, was in possession of a portion of the lot which he unlawfully withheld from plaintiff, although possession had been by him demanded.

The defendant, in his answer, denied that he was in possession of a portion of the premises as bounded and described in the complaint; and denied also any demand of possession, or un

Ford a. Sampson.

lawful withholding; but set up no denial of the plaintiff's seizin or right of possession.

Further facts are stated in the opinion of the court.

On the trial of the cause the judge directed the jury to find a verdict for the defendant, with leave to the plaintiff to apply to the general term to turn the same into a verdict for the plaintiff for a strip of ground on the southerly side of the plaintiff's lot, four inches in width at the rear of the lot, and twenty-two feet six inches in length.

The plaintiff now moved at general term to turn the verdict for the defendant into a verdict for the plaintiff.

Gordon L. Ford, plaintiff in person.-I. The only issue made by the pleadings is, who is now in possession-plaintiff or defendant? And if the facts show the defendant to be, then, if he neither alleges nor shows adverse possession or claim of title to the ground claimed by the plaintiff, nor disputes the plaintiff's title or right to the possession, his possession "must be deemed to have been under and in subordination to the legal title" of the plaintiff. (2 Rev. Stats., 4th ed., 495, § 81; Code, 881.) The possession of a person entering on lands without pretence of title, will be deemed the possession of the true owner. No adverse possession or claim of title is shown by the defendant at the time plaintiff took title in 1856; and mere possession in another does not void a conveyance made by the real owner. To avoid a conveyance, it must be a possession under a claim of title adverse to the grantor (2 Rev. Stats., 149, $160), and the possession will be presumed in the legal owner; but an adverse possession will not be presumed. It must always be clearly proved by the person claiming under such possession. And to constitute adverse possession, there must in all cases be claim of title. (Code, § 81.)

Where the title under which the plaintiff claims is clearly good, the court should be astute in finding grounds to give him. a verdict, and ought not to compel the parties plaintiff to resort to a new suit, where no legal defence can exist. (SPENCER, J., 2 Cai., 183.) Defendant would not have been allowed, under his answer, to have proved either adverse possession or claim of title, for he alleges neither. As the pretended claim of the de

Ford a. Sampson.

fendant, set up for the first time more than two years after the plaintiff had acquired title, discloses no legal, equitable, or conscientious defence, and as plaintiff shows legal title, the verdict should be for the plaintiff for the land claimed. (See Bowie a. Brahe, 3 Duer, 35; Miller a. Platt, 5 Ib., 272; Lane a. Gould, 10 Barb., 254; 4 Kent's Com., 488, &c.)

Philip S. Crooke and A. Lott for defendant.-The plaintiff sues for the recovery of a piece of land which had never been in his possession, or the possession of his grantor. "It seems to

be the general sense and usage of mankind, that the transfer of real property should not be valid, unless the grantor hath the capacity as well as the intention to deliver possession." (4 Kent's Com., 448.)

BY THE COURT.-BROWN, J.-The parties to this action are owners of separate lots of ground adjoining, and upon the west side of Columbia-street in the city of Brooklyn, and this action is brought to recover a small gore of land, six inches wide in the rear, and running out to a point thirty-five feet easterly from the rear of the lots, and which the plaintiff claims is included within the lines of his lot, and is now in the possession of the defendant.

The proof shows that the gore of land in controversy is within the defendant's inclosure, and on his side of the division fence. George S. Howland owned both of the lots in 1841, and is the common source of title. He conveyed the plaintiff's lot to Wildes Thomas Thompson, by deed dated June 21, 1842, who conveyed to William S. Wetmore, by deed dated September 7, 1848. William S. Wetmore conveyed to the plaintiff by deed bearing date April 19, 1856.

The title deeds of the defendant were not produced upon the trial, so that we do not see precisely when he or his grantors, mediate or immediate, enter into the possession. If the question of adverse possession arose in the case, as the counsel for the defendant supposed upon the argument, this fact would have been important; but in the view I shall take of the case, it cannot be of any consequence.

The complaint sets out the plaintiff's seizin in fee simple of the entire lot upon the westerly side of Columbia-street, describing it by the same metes and bounds as those contained in the

Block a. Haas.

several deeds of conveyance to which I have referred; and then alleges that the defendant is in possession of a portion of the lot, being the gore in controversy, which is also described by metes and bounds. It also alleges that possession of the gore or small lot has been demanded of the defendant, and that he refused and still refuses to deliver up the same to the plaintiff. To these distinct and specific allegations the defendant answers, that he denies that he was in possession of the premises claimed and described in the complaint. He also denies the demand of the possession, and the unlawful withholding thereof.

The title of the plaintiff is not put in issue by the pleadings, for nothing is controverted by the answer but the defendant's possession, the plaintiff's demand of the possession, and the unlawful withholding thereof by the defendant. No question of adverse possession arises in the case, for if it was the design of the defendant to put in question the validity and force of the plaintiff's deed to pass the title to the lands in dispute while a stranger was in possession claiming the title, he should have framed his answer accordingly, and set up the title in himself, or title out of the plaintiff, and thus the title would have been put in issue. Both the surveyors concur that the plaintiff's deed covers the premises in dispute, and the letter of the plaintiff of the date of the 1st July, 1858, and the defendant's reply thereto, proves that the possession was demanded and refused.

Judgment should be entered that the plaintiff recover from the defendant the premises described in the complaint, with costs.

BLOCK a. HAAS.

New York Common Pleas; Special Term, April, 1859.

EXAMINATION OF PARTY.-COMMISSION.

Under section 399 of the Code as amended in 1859, a non-resident party may be examined by a commission issued and executed in the usual manner.

Motion on behalf of plaintiff, a non-resident, for a commission to take his own testimony.

The Parish Will Case.

HILTON, J.-The plaintiff, being a non-resident of the State, asks for a commission to examine himself and others as wit nesses on his behalf.

Prior to the amendments of the Code, in April, 1859, it was held that this examination of a non-resident party under a commission could not be had, unless the opposite party had given notice of his intended examination at the trial. But section 399 has been amended to obviate this objection, and the notice of intended examination of a party is no longer required. A party may now be examined the same as any other witness (except in certain specified cases), and without previous notice; and if he resides out of the jurisdiction of the court, he may be examined by a commission issued and executed in the usual manner.

The motion for a commission is therefore granted; costs to abide event.

THE PARISH WILL CASE.

Supreme Court, First District; General Term, April, 1859. SPECIAL COLLECTOR.-COSTS IN SURROGATE'S COURT.

A special collector appointed by the surrogate has no authority to pay debts or make any disposition of the funds, except to pay his own expenses; and an order of the surrogate, that the costs of the parties to the proceedings on propounding the will for probate, be paid out of the estate, does not authorize the collector to pay such costs.

The contestants either for or against the will have no claim to be paid out of the estate until a final decision is made, so as to take the property out of the hands of the collector; and an order of the surrogate directing the collector to pay costs and expenses to the litigants is erroneous, and should be reversed.

It seems, that the surrogate's power to award costs out of the fund is purely statutory.

Whether he may award costs to an unsuccessful litigant,-Query?

Appeal from an order of the surrogate of the county of New York.

In the matter of the estate of Henry Parish, deceased, the surrogate made an order on the 17th day of December, 1857,